Articles Posted in U.S. Court of Appeals for the Fifth Circuit

House Bill 11 added a new basis of liability while limiting a Texas statute's, Tex. Penal Code 20.05, reach to those who smuggle persons with "the intent to obtain a pecuniary benefit." Two of the plaintiffs in this case rent residential property to persons regardless of immigration status. Two other plaintiffs provide social services to low-income individuals. Plaintiffs filed suit claiming that provisions of House Bill 11 are preempted by federal immigration law and violate the Fourteenth Amendment's Due Process and Equal Protection Clauses. The district court dismissed the Fourteenth Amendment claims but granted a preliminary injunction on the ground that plaintiffs' preemption arguments were likely to succeed on the merits. The court concluded that plaintiffs lack Article III standing because they cannot demonstrate a credible threat of prosecution where they have not hampered authorities from finding any of the illegal aliens they rent to or serve, nor have they taken steps to help the aliens evade "detection" by the authorities. Therefore, the court reversed the injunction and rendered a judgment of dismissal for want of jurisdiction, because there was no reasonable interpretation by which merely renting housing or providing social services to an illegal alien constitutes harboring that person from detection. View "Cruz v. Abbott" on Justia Law

USCIS denied plaintiff's application for naturalization based on her conviction of conspiracy to commit false or altered lottery tickets. USCIS reasoned that plaintiff's conviction, an aggravated felony, permanently prevented her from demonstrating good moral character and thus from being naturalized. Plaintiff argues that the Louisiana statute implementing the first-offender pardon demonstrates that this is a full pardon such that it falls within the regulation. Given that Louisiana does not consider the automatic first-offender pardon to restore "a status of innocence," as does a gubernatorial pardon, the court concluded that USCIS's interpretation that an automatic first-offender pardon is not a "full and unconditional executive pardon" is permissible. Accordingly, the court affirmed the district court's grant of summary judgment. View "Nguyen v. USCIS" on Justia Law

Defendant appealed his conviction and sentence for illegal reentry after deportation, arguing that the district court erred in determining that his prior New Jersey conviction for endangering the welfare of a child is a crime of violence (COV). The court concluded that even if his conviction was not for sexual abuse of a minor and does not qualify as an aggravated felony, he has also been convicted of illegal reentry and that conviction qualifies as an aggravated felony. Accordingly, the court affirmed the judgment. View "United States v. Solano-Hernandez" on Justia Law

Petitioner, a Mexican national, seeks review of the BIA's affirmance of the IJ's denial of his application for withholding of removal and relief under the Convention Against Torture (CAT). The court concluded that it lacked jurisdiction to review the BIA's credibility determinations, but has jurisdiction to review his argument that his is more likely than not to be persecuted on account of his membership in a particular social group. However, because the BIA failed to apply the appropriate legal standards, the court need not resolve these issues on the merits. In this case, the BIA specifically refused to consider an alternative argument that had been raised before the IJ—namely that the evidence external to petitioner's testimony established that removal to Mexico would put his life in jeopardy. Therefore, it would be a violation of well-established principles of administrative law for the court to reach this issue. Likewise, the court declined to consider whether petitioner is eligible for relief under the CAT because the BIA failed to apply the appropriate legal standard. The court vacated and remanded for consideration under the appropriate legal standard. View "Iruegas-Valdez v. Yates" on Justia Law

Petitioner, a native and citizen of Mexico, seeks review of the BIA's decision dismissing his appeal from the order denying his application for withholding removal and requiring his return to Mexico. Petitioner maintains he will likely face persecution in Mexico because the family of a man murdered by his father more than two decades ago allegedly targets him for revenge. The court agreed with the BIA that petitioner's claim that he would be persecuted if returned to Mexico is speculative. Petitioner also maintains he will likely face persecution in Mexico because he will be perceived to have wealth for having lived in the United States. The court concluded that persons believed to be wealthy because they are returning to their home country from the United States do not constitute a sufficiently particular social group to support an application for withholding of removal. Accordingly, the court denied the petition. View "Gonzalez-Soto v. Lynch" on Justia Law

Petitioner, a native and citizen of Mexico, seeks review of the BIA's decision affirming the IJ's determination that petitioner is removable under 8 U.S.C. 1227(a)(2)(B)(i) and 8 U.S.C. 1227(a)(2)(A)(iii). Petitioner had pleaded guilty to possession with the intent to deliver over ten pounds of marijuana in violation of Ark. Code Ann. 5-64-401(a). Section 5-64-401(a) renders it unlawful for any person to purposely, knowingly, or recklessly manufacture, deliver, or possess with the intent to manufacture or deliver a controlled substance. At issue is whether petitioner's conviction constitutes “illicit trafficking in a controlled substance,” a phrase that the INA has left undefined. The Supreme Court has instructed that in determining what constitutes a “small” amount of marijuana, courts are to utilize their common sense. In this case, the court explained that common sense dictates that ten pounds of marijuana is no “small amount,” particularly in light of the 1.3 grams of marijuana that the Supreme Court declared “small” in Moncrieffe v. Holder. Therefore, the court held that petitioner was convicted of a state felony that constitutes “illicit trafficking in a controlled substance” such that he is an aggravated felon and is ineligible for relief from removal. The court denied the petition. View "Flores-Larrazola v. Lynch" on Justia Law

Petitioner, a native and citizen of India, seeks review of the BIA's decision denying his motion to reopen. Petitioner, charged with entering the United States without inspection, sought asylum, withholding of removal, and relief under the Convention Against Torture (CAT) based on his membership in a rival political party in India, the Akali Dal (Badal) party. The court concluded that the BIA's findings are supported by the record. In this case, the State Department’s 2012 Country Report for India did not describe a change in country conditions that are materially different than when petitioner was ordered removed, and the Report does not indicate whether conditions have substantially deteriorated since petitioner's order of removal. Accordingly, the court denied the petition for review. View "Singh v. Lynch" on Justia Law

Plaintiffs, Hispanic employees of Koch, a poultry processor, filed suit alleging harassment and abuse on the job. Koch claims that plaintiffs made up the allegations in order to benefit from the U-visa program. The U-visa program has offered temporary nonimmigrant status to victims of “substantial physical or mental abuse” resulting from certain offenses, including sexual assault, abusive sexual contact, extortion, and felonious assault. This appeal concerns Koch’s attempt to obtain concrete evidence of this malfeasance – namely, any and all records relating to plaintiffs' speculated U visa applications – through discovery. Confirming that it has jurisdiction, the court rejected Koch's waiver claim regarding plaintiffs' section 1367 claims. The court found the D.C. Circuit’s decision in In re England to be persuasive, where the D.C. Circuit construed a provision barring disclosure of certain military promotion records to any person not a member of the promotion board to forbid civil discovery of the records. In regard to section 1367's application to the EEOC, the court concluded that section 1367’s similar text and analogous purpose counsel the same result here as in England. However, section 1367 does not bar discovery of the records from the individual claimants. Their protection, if any, lies in the basic constraints of the discovery process. The court could not conclude that the district court abused its discretion in finding U visa discovery relevant and potentially probative of fraud. However, the court concluded that the discovery the district court approved would impose an undue burden and must be redefined. Accordingly, the court remanded for the district court to devise an approach to U visa discovery that adequately protects the diverse and competing interests at stake. View "Cazorla v. Koch Foods of Mississippi, LLC" on Justia Law

Petitioner, a native and citizen of Mexico, seeks review of the BIA's affirmance of the IJ's denial of petitioner's applications for adjustment of status and cancellation of removal. Petitioner asserts that he is eligible for adjustment of status because he falls into the exception to 8 U.S.C. 212(a)(9)(C)(i)(I). The court deferred to the BIA's interpretation of section 212(a)(9)(C)(i)(I). Though ten years have elapsed since petitioner's last departure from the United States, he failed to remain outside the United States for ten years before returning to the United States. Therefore, petitioner does not meet section 212(a)(9)(C)(ii)’s exception to inadmissibility. Likewise, petitioner has failed to establish that he was ineligible for cancellation of removal where he has failed to establish ten years' continuous physical presence in the relevant time period. The court denied the petition for review. View "Zermeno v. Lynch" on Justia Law

Respondent seeks dismissal of petitioner's petition for lack of jurisdiction, arguing that the decision of the BIA is not a final reviewable order. Alternatively, respondent argues that the petition should be dismissed for prudential reasons. The court found cases from its sister circuits persuasive and concluded that a BIA decision which resolves the merits of an appeal but remands for further proceedings as to voluntary departure is a final order of removal for purposes of judicial review. The court also concluded that the question of whether petitioner has a colorable due process claim is sufficient to allow her petition for review to go forward. Accordingly, the court denied respondent's opposed motion to dismiss the petition for lack of jurisdiction. View "Holguin-Mendoza v. Lynch" on Justia Law